EQUALITY OF EDUCATIONAL OPPORTUNITY

THE SOUTHERN RESPONSE TO BROWN

"Separate educational facilities are inherently unequal...such segregation is a denial of the equal protection of the laws."

Thus

did Brown v. Board of Education provide a new answer to the continuing question of race in America.

Traditionally, black parents had viewed education as the means by which their children would achieve a better life. The plaintiffs in Brown had identified equal education with desegregated education, and they saw both as providing access to economic prosperity and all other 106 elements of the American dream. Now the Supreme Court of the United

States had legitimated their struggle for equality.

The post-Brown cases, then, were brought by black parents and children who sought to protect their rights through Federal courts that had been charged with bringing public education into line with constitutional requirements. Only in a few States were the schools desegregated without further prodding by the courts.

The District of Columbia public schools were ordered to begin desegregation by September 2, 1954. Although the board of education in Topeka had voted to abolish optional elementary school segregation in September 1953, desegregation was postponed while it waited for Brown II to implement Brown I. In Delaware, where blacks had won in the State courts, the Brown decision became an excuse for slowing down desegregation. Some Border States moved to comply without significant opposition, but the Southern States went to battle with Federal district judges over desegregation.

Some States, such as Florida, North Carolina, Tennessee, Texas, and sometimes Arkansas, reacted against the decision while supporting the Supreme Court's authority with limited desegregation. Virginia

106. Raymond Mack, Our Children's Burden: Studies of Desegregation in Eight American Communities (New York: Random House, 1968), p. xiii.

42

adopted a policy of "massive resistance" and allowed no desegregation
107
The greatest resistance was in the deep South--

for several years.

Alabama, Georgia, Louisiana, Mississippi, and South Carolina.

The Southern States adopted three major forms of legislative resistance to desegregation: (1) pupil assignment laws, (2) school closing laws, and (3) laws providing tuition grants and other aid to private schools. Eleven States passed laws that set forth rules determining how students would be assigned to schools. In 10 of the 11 States, the assignment power was given to the local school board so that there could be no statewide decree to desegregate.

The Supreme Court subsequently ruled that, although pupil assignment laws were not unconstitutional on their face, they might be in application. The elaborate procedures for admission to schools established by the assignment laws, in fact, were designed to discourage black students from applying to all-white schools. With but a few exceptions, the laws worked successfully to prevent even token desegregation. School closings were viewed by some as a last resort against desegregation. These people believed that it was better to have no public schools at all than to have blacks and whites in class together. Only South Carolina and Tennessee did not pass school closing laws. But even in the most recalcitrant States these laws were seldom, if ever, implemented, and the courts eventually struck down as unconstitutional the statutes that allowed school closings designed specifically to avoid 108 desegregation. However, laws directly related to the school closing legislation in purpose, effect, and constitutionality allowed States to cut off funds to schools or districts that went ahead with desegregation. Laws that terminated funds in such cases were passed by seven States but proved to be ineffective in prohibiting desegregation.

107. See Reed Sarratt, The Ordeal of Desegregation (New York: Harper and Row, 1966) for a detailed description of this period.

108. For Virginia and Arkansas, for example, see U.S., Commission on Civil Rights, 1961 Report, vol. 3, Education, p. 85.

Another tactic to avoid desegregation was to provide indirect aid to private schools. Tuition grants usually equaled the per pupil share of State and local expenditure for public schools. Other aid to private schools took the form of "tax deductions or credits for donations made to such institutions, extension of state retirement benefits to teachers employed by private schools, and even reimbursement for trans109 portation expenses of pupils attending the school." Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, Arkansas, and North Carolina adopted laws of this type following the Brown decision.

The Southern States also sought to curb the activities of the NAACP and its Legal Defense and Educational Fund. Every Southern State except North Carolina enacted a variety of anti-NAACP laws. Most of these laws were aimed at preventing NAACP lawyers from engaging in "barratry," a legal term for persistent incitement and solicitation of litigation. Southern officials felt that, as the NAACP was handling so many school the organization must have solicited or "stirred up" the litigation, since Southern blacks presumably "knew their places" too well to dare sue for school desegregation.

A South Carolina State representative, Charles G. Garrett, described the antibarratry laws as designed "to protect our Negro citizens and colored public employees, most of whom are not members of the organization, from the intimidation and coercion of the NAACP, as well as to limit its activities against the best interests of our white citizens." Other laws designed to cripple the NAACP

included racial lobbyist laws requiring NAACP officials
to register with the State; laws making it a misdemeanor
to employ a member of the NAACP, and making membership in
an organization advocating integration ground for dis-
missal from public employment; laws saying that all
public employees must list the organizations to which
they belonged and to which they made contributions; laws
requiring the NAACP to file a list of its membership
which foreign corporations (those chartered in another
state) could engage. 110

109. Ibid., p. 88.

110. Sarratt, The Ordeal of Desegregation, pp. 36-37.

The NAACP was investigated almost continuously by various State committees and avidly persecuted as being part of the "Communist conspiracy," a significant public concern during this period. Unsuccessful attempts were made to get NAACP membership lists, which would have been invaluable in segregationist efforts to intimidate blacks further. In fact, the very segregated schools black children desired to escape were the recruiting grounds for student NAACP members.

111

Although the NAACP won all the cases involving anti-NAACP laws in appellate courts and in the Supreme Court, the harassment hampered the organization in terms of time lost and money spent defending itself rather than fighting to desegregate schools. In addition to curtailing suits, however, another objective of the anti-NAACP legislation was to "discourage Negro teachers--the best-educated, the most articulate and the most valuable segment of the Negro community-- from actively parti112 cipating in the desegregation struggle."

Federal Judge Constance Baker Motley, formerly associate counsel of the Legal Defense and Educational Fund, recalls that "those were frightening years to work for the NAACP, but there was work to be

done.

,113

So the NAACP desegregation effort was carried on and has continued to this day.

SCHOOL DESEGREGATION

Although there are few statistics reflecting the racial composition of the public schools in 1954, data gathered since then indicate the extent of desegregation progress. Prior to 1954, 17 Southern and Border States, in addition to the District of Columbia, had laws requiring segregated schools; several other States also supported such a system until after the Second World War. By 1964, however, despite

111. See NAACP v. Button, 371 U.S. 415 (1963); NAACP v. Alabama, 357 U.S. 449 (1958); and Bates v. Little Rock, 361 U.S. 516 (1960).

112.

Sarratt, The Ordeal of Desegregation, p. 38.

113. Interview in New York City, Nov. 11, 1973.

Brown, the school situation in the South was virtually unchanged.
Some improvement occurred after the Civil Rights Act of 1964 was passed.
But it has been only since 1968 that substantial reduction of racial
segregation has taken place in the South.

In 1964, 9.3 percent of 3.4 million black school children in the 17-State area attended desegregated schools. Of these children, 89.2 percent were in Border States (Delaware, Kentucky, Maryland, Missouri, Oklahoma, West Virginia) and the District of Columbia. With the exception of Delaware, there was the least resistance to desegregation in these States. Yet, even here, 45.2 percent of black children still 114 attended segregated schools.

In 1964, only 1.2 percent of almost 2.9 million black pupils in the South (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia) attended school with whites, and over 50 percent of these pupils were in Texas. None of the almost 292,000 black pupils in Mississippi attended school with whites. In South Carolina, only 10 of nearly 259,000 black pupils attended school with whites. In Alabama, only 21 of more than 287,000 black pupils attended school with whites.

The number of black pupils attending school with whites in the 17 Southern and Border States had increased by an average of 1 percent a year until 1964. Then the rate accelerated somewhat with passage of the Civil Rights Act. By the end of the 1964-1965 school year, 10.9 percent of black pupils were in biracial schools. In the 11 States of the South, this figure reached 2.2 percent in 1964-1965 and 6 percent in 1965-1966. In the Border States it was 58.3 and 68.9 percent in 115 those years, respectively.

114. The Southern Education Reporting Service is the primary source of the data summarized here; see Sarratt, The Ordeal of Desegregation, tables 1 and 2.